Red tape or a red rag?: the Equality Act in the UK

With
austerity measures in full swing, the government's decision to review the duty on state and government bodies
to proactively tackle women's inequality in the UK has raised alarm bells
amongst leading women's rights organisations

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When the Coalition government in Britain announces that it
will review an existing law in the interest of cutting back red tape, we can be
sure that it will involve dismantling any protections that the vulnerable and
powerless may have acquired in favour of reducing the ‘burden on
business’. This was the justification for the review
of the Public Sector Equality duty (PSED)
which places a
duty on the state and government bodies to proactively tackle women’s
inequality in the UK. It ‘requires public
bodies to have due regard to the need to eliminate discrimination, advance
equality of opportunity and foster good relations between different people when
carrying out their activities.’ This duty is a significant aspect of the Equality Act 2010, which brings together 116 different
pieces of legislation like the Sex Discrimination and Race Relations Acts,
which protect women
and other groups, on the grounds of race, disability, age, to name but a few,
against various forms of discrimination. To review
legislation less than two years after it was introduced indicates that it is
more of a red rag than red tape to Theresa May, the Home Secretary,
and her government.

In July, the Fawcett Society
produced a briefing, Red Tape, Red Line, in order to
influence the government’s forthcoming review of the PSED, also known as
the Equality Duty, quite rightly
alarmed that the review could amount to a filleting of its most effective
elements, like removing the obligation
to carry out an Equality Impact Assessment, without which the public sector
would not know whether it was fulfilling it Equality Duty. When David Cameron declares that he is calling time on consultations and impact
assessments, it is difficult to have faith in the government’s avowed intentions to consider ‘what changes, if any, would ensure
better equality outcomes' (legislative, administrative and/or enforcement
changes, for example).

One of the most radical aspects of the Equality Act was
its recognition of class i.e. ‘socio-economic disadvantage’, apart from other
protected and universally accepted characteristics such as race, gender,
sexuality, disability etc as being the main drivers of inequality of outcomes.
This, unsurprisingly, was the first to go in 2010, within months of the
Coalition Government coming into power. Although
it was particularly weakly worded, and had not been enacted, it was a very
important advance - an implicit
recognition that under a capitalist system, class
was a substantial and intransigent obstacle to equality. Under this clause,
health authorities would have been expected to redirect their budgets to areas
with the worst health outcomes, and education authorities would have had a duty
to make successful schools accessible to poor children and so on. If it had
been given teeth, we would have been able to hold public authorities
accountable under the Equality duty. Of course, a law that undermines the very
logic of capitalism would probably never have made it through the door.

There are similar and fairly insurmountable contradictions
at work with regard to the other characteristics protected from discrimination
too. The cutbacks in public sector employment and privatisation of government
services, the attack on benefits and the expansion in low-paid part-time work
have had the most devastating and unequal impact on women
in the UK , on the black and
minority ethnic communities
and disabled
people; a law protecting
people from discrimination will achieve little more than putting the UK’s
statute book on the moral high ground.
These austerity measures have not been subjected to an equality impact
assessment, despite the Fawcett Society’s original and bold attempt
in 2010 to have the first Coalition budget judicially reviewed for its impact
on women in what was the first legal challenge to the national Budget ever. The
budget had sought to make £8bn worth of savings, of which, it was estimated
that more than 70% would come out of women’s pockets. Despite the
disproportionate burden of the Budget and the government’s failure to carry out
a gender equality impact assessment, the judge ruled that, ‘the application was
"unarguable", and there was "no prospect" of a court
declaring the budget unlawful’.

This imaginative initiative followed on from the judicial
review launched in 2008 by Southall Black Sisters (SBS)
of Ealing Council’s decision to stop the funding of specialist services, and to use the same pot of money (
£100,000 pa) that it used to give to SBS to provide a generic
borough-wide service to all women facing domestic violence, on the basis that
it had identified gaps in
provision, most notably for white women – a laudable aim, if properly funded.
Ealing embarked on this course of action without carrying out a race equality
impact assessment (EIA) to find out how the withdrawal of funding would impact
on black and minority women escaping domestic violence. Ealing lost the case: the judge ruled that the council should have carried out an EIA before
policy was changed, and not after the event to buttress its case. The council's
actions amounted to policy-based evidence gathering rather than evidence-based
policy development. The judgment also clarified the fact that
specialist services for a racial minority from a specialist source i.e. SBS, is anti‑discriminatory and
furthers the objectives of equality and cohesion. SBS said, ‘We have
understood the value of using the equality duty in creating structures of good
governance and in ensuring that the state at the central and local level
relates to us not as subjects but as citizens.’ After the victory, SBS were invited by groups up and down the
country to advise them on how to hold their local authorities to account and
avoid cuts to specialist services and also by local authorities to advise them
on transparent decision making. Judicial Reviews (JRs) are an important way of holding a
government to account but accountability is the last thing this government
wants, especially when making cuts to services.

In 2011, there were 11,359 applications for permission to apply for JRs, a 70 %
increase since 2007. However, it was mainly immigration
and asylum cases that were driving this increase. Without acknowledging that fact, David Cameron used this spike in figures to pledge
that he would cut back on JRs and
impact assessments because ‘this is not how we became one of the most
powerful, prosperous nations on earth.’ Indeed, as all British ex-colonies are
well aware!

A commitment to equality does not come cheap. Although the Fawcett Society makes a valiant
effort to demonstrate the economic benefits of strengthening the Equalities
legislation (for example, by reducing the number of legal challenges and
inefficiencies of poorly targeted
services), its real value lies in the kind of statement that we make about
ourselves as a society and nation committed to certain principles. To make a
plea to a government which abolished the Women’s National Commission almost immediately after taking
office, and which has drastically cut the budget and remit of the Equality and Human rights Commission and the Government Equalities Office, to ‘lead by example’
is an example of hope triumphing reason.

There has not been enough of a fight-back on these issues
although the outcome of the government’s review, which is due in the Autumn, would affect us all. This is partly because the workings
of the Equality act operate at a secondary tier of service delivery, set back
from public view. While the focus, understandably, has been on cutbacks in
legal aid which will drastically reduce access to justice, any watering down of
the equalities legislation will also have a far-reaching impact. It will
destroy the few protections we have against the huge inequalities that have
been generated by the selective austerity of a failing neo-liberal economic
model.